More Sample Contracts
Subject to Contract
A. Date |
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B. Parties |
(i) |
Name of Company A/ Licensor Address (“Licensor” which expression shall include Permitted Transferees) |
(ii) |
Name of Company B Address (“Company B” which expression shall include Permitted Transferees) |
C. Definitions As set forth in clauses A–J hereof and in clause 1 of the general conditions (the “Conditions”) annexed hereto.
D. Licence Licensor hereby grants to Company B by way of exclusive licence under copyright the Rights in and to the Programme in the Territory on and subject to the terms set forth herein and in the Conditions.
E. The Programme herein licensed by Licensor and the licence fee for the Programme (the “Licence Fee”) are as follows:
| Title | Licence Fee | |
| “Name of Programme” | £3,000 |
F. The Licence Fee in respect of the Programme shall be payable as follows:
| Event | Amount | |
| Upon Delivery Date | 50% of the Licence Fee | |
| On 1st November 2006 | 50% of the Licence Fee |
(a) “Availability Date”: in respect of the Programme: 1st September 2006
(b) “Licence Period”: in respect of the Programme: a period commencing on the Availability Date and continuing for three (3) years after the later of the Availability Date or the Delivery Date.
(c) “NVOD”: means the exhibition of programming by any means of Television where an individual exhibition fee charge on a per-exhibition basis is made by a viewer for the privilege of viewing that particular programme or film and where such programme or film is scheduled by the broadcaster at frequent intervals of less than fifteen (15) minutes apart.
H. Number of Exhibitions:
Maximum Number of Exhibition Weeks in respect of the Programme on any Primary Channel and multiplex versions thereof as provided in clause 1.8 of the Conditions: unlimited
I. Special Conditions
(a) All Materials as specified in clause 3.1 of the Conditions shall be delivered, by courier, to:
Name of Contact at Company B Address
(b) Company B shall pay the relevant Licence Fee(s) due pursuant to this Agreement by the relevant Payment Date. “Payment Date” means the date(s) set out in Clause F above save that no Licence Fee shall be payable until 45 days after receipt by Company B of an appropriate invoice. Invoices should be addressed for the attention of “Name of contact at Company B” the address set out in clause I(a) above.
(c) If payment has not been made by the Payment Date, Licensor may charge interest on any outstanding uncontested sums, at the rate of 2% above the base rate from time to time of “Name of Bank” from the relevant Payment Date until payment by Company B of the relevant uncontested sum due hereunder. Such interest shall accrue and be calculated on a daily basis.
(d) Company B shall be entitled to exhibit the Programme on any channel, including, for the avoidance of doubt and without limitation, any multiplex versions of any channel, broadcast by Company B or any Subsidiary or Associated Company during the Licence Period.
(e) For the purposes of clause 1.8 and clause 2 of the Conditions only, the words “including without limitation the “Internet” in lines 5 and 6 of clause 1.11 of the Conditions shall be deemed to have been deleted and replaced by the words “excluding the “Internet”. Further, also for the purposes of clause 1.8 and clause 2 of the Conditions only, the definition of Television in clause 1.11 of the Conditions shall be deemed to exclude Pay-Per-View, Video-On-Demand, SVOD, NVOD and delivery via mobile telecommunication systems.
(f) Clause 1.8.4 of the Conditions shall be deemed deleted.
(g) For the avoidance of doubt, the Licence Fee shall include any and all costs and expenses incurred in relation to the creation of any Masters in respect of the Programme to be supplied in accordance with this Agreement.
(h) Notwithstanding anything to the contrary in this Agreement, Company B shall be responsible for any Broadcast Grand Rights Payments (defined below) due in connection with Company B’s broadcast of the Programme(s) during the Licence Period PROVIDED THAT the Licensor has notified Company B in writing no later than one (1) month prior to the Availability Date that such Payments are required.
For the purposes of this Agreement, broadcast grand rights payments (“Broadcast Grand Rights Payments”) shall mean payments payable to the relevant copyright owner and that generally arise in connection with the broadcast of dramatic presentations (of the complete work or extracts) of copyright operas, operettas, stage (not film) musicals and ballets.
Company B’s responsibility herein shall be limited to payment of Broadcast Grand Rights Payments and it is the sole responsibility of the Licensor to clear and/or pay for any and all grand right synchronisation fees (as such terms are currently understood in the film and music industry in the Territory as at the date hereof) that arise in connection with the recording of the Programme(s).
If the Licensor fails to notify Company B of any Broadcast Grand Rights Payments that will arise out of or in connection with Company B’s broadcast of the Programme(s), the Licensor agrees, warrants and represents that Licensor has either fully cleared any and all Broadcast Grand Rights Payments or that no Broadcast Grand Rights Payments will arise out of or in connection with Company B’s broadcast of the Programme(s) during the Licence Period.
In the event that Company B is obliged to make any Broadcast Grand Rights Payments in connection with its broadcast of the Programme(s) and the Licensor has failed to notify Company B in accordance with this Special Condition clause I (h) that such Payments will arise out of or in connection with such broadcast (“Additional Payments”), Company B shall provide to the Licensor a document certifying the Additional Payments made and the Licensor shall immediately repay to Company B such Additional Payments. Alternatively, Company B shall be entitled to set off such Additional Payments against any payments owing to the Licensor including, without limitation, Licence Fees due to it under the terms of this Agreement.
In the event that the Licensor notifies Company B less than one (1) month prior to the Availability Date that Broadcast Grand Rights Payments will arise out of or in connection with Company B’s broadcast of the Programme(s) or if any Additional Payments are not repaid to Company B within forty-five (45) days of Company B providing the appropriate documentation to the Licensor, Company B shall have the right at its sole discretion to terminate this Agreement and Licensor shall forthwith repay to Company B such amount reduced on a pro rata basis based on the number of Exhibition Days that the Programme was exhibited by Company B subject to the above right to set off with respect to Additional Payments for such Exhibition Days. Company B’s right to terminate shall be without prejudice to Company B’s other rights or remedies against the Licensor hereunder.
(i) The words “at least one hundred and fifty (150) days” in line 2 of clause 3.1 of the Conditions shall be deemed deleted and replaced by the words “no later than six (6) weeks”.
(j) The Licensor acknowledges that it will be solely responsible for the costs of delivery of the Materials set out in clause 3.1 of the Conditions.
(k) The Licensor shall grant Company B access to any relevant website for the purposes of downloading publicity and promotional materials in respect of the Programme.
(l) Company B acknowledges that it may not use or authorise the use of the name and/or likeness of NAME OF ARTIST, NAME OF ARTIST, and/or NAME OF ARTIST in its promotion(s) of its exhibition of the Programme. Further, Company B acknowledges that it may not use any songs or soundtracks other than those of the Licensor in the creation of trailers or other promotional videos for the Programme without the prior written consent of the Licensor.
(m) In the event the first Master delivered by the Licensor has been accepted by Company B in accordance with the terms of this Agreement, the word “Licensor’s” in line 5 of clause 3.3 of the Conditions shall be deemed deleted and replaced with the word “Company B’s”.
(n) Clause 7 of the Conditions shall be deemed deleted and replaced with the following clause 7:
“Each party shall be responsible for its own tax liabilities in their respective Territory, including any company or corporate tax, national taxes, federal or state taxes, and all such payments hereunder shall be made without any deduction other than withholding (if applicable). In the event that either party is obliged to make a payment for withholding tax, then the party who is responsible shall pay the amount withheld promptly to the appropriate authority and shall provide the other party with a verified original document (or other reasonable evidence) certifying that the amounts withheld has or will be accounted for to the appropriate authority.”
(o) Both Company B and the Licensor acknowledge that Company B’s first exhibition on Television of the Programme shall be a Television premiere in the Territory and Company B shall be entitled to refer to it as such.
(p) Company B shall have the option to relicense the Programme on terms to be negotiated in good faith, such option to be exercised by Company B no later than 31st May 2009.
J. Agreement
This agreement shall consist of clauses A–J hereof together with the Conditions and Attachment A which are hereby incorporated. In the event of any inconsistency between the Conditions, Attachment A and clauses A–J hereof, clauses A–J shall prevail.
AS WITNESS the hands of the authorised signatories on behalf of the parties the day and year first above written.
SIGNED by
_____________________
for and on behalf of
Company A, Inc.
SIGNED by
_____________________
for and on behalf of
Company B
Programme Purchase Agreement General Conditions
1. Definitions
For the purposes of the agreement consisting of clauses A–J inclusive and these Conditions (hereinafter “the Agreement”) the following words shall have the meanings hereby ascribed to them and words and phrases defined in clauses A–J inclusive of the Agreement shall have the same meanings in these Conditions:
1.1. “Associated Company” shall have the meaning attributed to it in Section 416 of the Income and Corporation Taxes Act 1988 save that references to “company” and cognate expressions shall be deemed to include references to “body corporate”.
1.2. “Delivery Date” in respect of each Programme, means the date on which the materials listed in clause 3.1 are delivered to Company B provided always that delivery shall not be deemed to have taken place until such time as an acceptable Master shall have been delivered and accepted by Company B in accordance with clause 3.2.
1.3. “Exhibition Week” means a seven day period commencing from the time of first transmission of each Programme during which period each Programme may be exhibited up to three (3) times.
1.4. “Master” means as requested by Company B one high definition HD 1080/25/I and/or standard definition pure 625 component Digital Betacam in accordance with the technical specifications set out in Attachment A and being a direct digital dub sourced directly from a 35 mm Programme with stereo sound. Such Masters shall be provided as follows:
1.4.1. Language: supplied in English or in original language with English sub-titles.
1.4.2. Format: a 16 : 9 full height anamorphically compressed Pal Digital Betacam. If a 16 : 9 fullheight version is not available, then subject to Company B’s prior written consent, Licensor may offer to supply a 16 : 9 letterbox 1 : 75/1 : 85/2 : 35 version. If the foregoing version is not available, then subject to Company B’s prior written consent, Licensor may offer to supply a 4 : 3 fullheight version.
1.4.3. All Masters shall be supplied in colour (unless originated in black and white) with stereo audio. Mono versions of stereo recordings are not acceptable.
1.4.4. The technical specifications for Master(s) set out in Attachment A are subject to change from time to time by Company B providing reasonable written notice to Licensor. Company B’s decision as to whether or not to accept materials other than in the PAL Digital Betacam format as specified above is in its sole discretion.
1.5. “Pay-Per-View” and/or “Video-On-Demand” (“PPV” and/or “VOD”) mean the exhibition of programming by any means of Television where an individual exhibition fee is charged on a per-exhibition basis for the privilege of viewing that particular programme or Programme.
1.6. “Performances” shall include acting, mime, dance, speech, production, direction, singing and playing an instrument or conducting (whether alone or with others).
1.7. “the Programme(s)” means the Programme(s) details of which are specified in clause E of the Agreement.
1.8. “Rights” means in respect of each of the Programmes the following rights granted by Licensor to Company B hereunder all of which shall be exclusive and may be exercised throughout the Term unless otherwise indicated namely:
1.8.1. The right to exhibit from any place and/or authorise others to exhibit from any place the Programme(s) during the Licence Period(s) by means of Television in the Territory. Company B shall be entitled to exercise the Rights hereunder on any channel broadcast by Company B or any Subsidiary or Associated Company.
1.8.2. The right to exhibit the Programmes on up to four (4) multiplexed versions of any main channel on which such Programme is exhibited (such main channel is hereafter the “Primary Channel”) e.g. up to four (4) versions of the Primary Channel (in addition to the Primary Channel) on which the programming is similar to or similarly branded to the Primary Channel.
1.8.3. The right to exhibit each Programme for up to the Maximum Number of Exhibition Weeks on each channel on which such Programme is exhibited. For the avoidance of doubt:
a) a simultaneous retransmission by third parties of Company B’s signal of the channels on which any such Programme is exhibited shall count only as the same one (1) exhibition; and
b) the exhibition rights granted hereunder shall apply separately and additionally to the exhibition of a Programme on each and every channel on which such Programme is exhibited. (For the purposes of what constitutes an exhibition rights hereunder apply and are granted in respect of each Programme separately and additionally to exhibition on any satellite/cable channel, any DTT delivered channel and any multiplexed version of a Primary Channel).
1.8.4. The right to exhibit from any place and/or authorise others to exhibit from any place the Programme(s) during the Licence Period(s) on SVOD in the Territory. Company B shall be entitled to exercise the Rights hereunder on any SVOD service provided by Company or any Subsidiary or Associated Company.
1.8.5. The right to exhibit to any place and/or authorise others to exhibit to any place the Programme(s) during the Licence Period(s) by means of Television in the Territory whether on a pay and/or free basis.
1.8.6. The right to make Company B’s Sub-Masters.
1.8.7. The right to cut and/or edit the Programme for the purposes of meeting censorship requirements and/or relevant guidelines and/or programming timing needs as required by Company B’s service, at Company B’s own discretion and cost.
1.8.8. The right, where Company B, in its sole discretion, deems it appropriate, to reversion and to retitle onto Company B’s Sub Masters only.
1.8.9. The right, without prejudice to any other Rights and remedies under this Agreement, to insert reasonable statements about transmission quality (by means of illustration only, to alert viewers about strobe-effects).
1.8.10. The right, without prejudice to any other Rights and remedies under this Agreement when Company B believes, in its sole reasonable opinion that the exhibition of the Programme may (a) be defamatory or contrary to law; or (b) infringe the copyright, performing right, right of privacy trademark or other proprietary right of any third party; or (c) cause Company B to be in breach of any law, regulation or Code of Practice or the provisions of any other agreement then Company B may omit the whole, but not part of such Programme and shall inform Licensor forthwith. In the event that Company B omits the Programme pursuant to this sub-clause, then Licensor shall reimburse Company B for Licence Fees attributable to such Programme.
1.8.11. The right to Subtitle, exhibit and authorise others to exhibit Subtitled versions of the Programme(s)/Programme(s). “Subtitle” shall mean the inclusion of text, signing, and/or audio description.
1.8.12. The right to insert and interpolate advertisements and sponsorship billboards at appropriate intervals in the Programme and to include the Programme (during the Licence Period) in any sponsored season or slot.
1.8.13. The right, prior to and during the Term, in connection with the advertising, publicising and promotion of Company B’s services:
a) to reproduce and transmit and authorise others to reproduce and transmit excerpts from the Programme (not to exceed three (3) minutes per excerpt) on any of Company B’s services or on the services of third parties or otherwise in any part of the Territory;
b) to reproduce and publish still photographs and/or brief synopses of the Programme and the right to authorise others to do the same;
c) authorise others to transmit excerpted and/or ‘grabbed’ still images or moving clips with or without the accompanying soundtrack and/or audio material from the Programme in local and wide area computer networks (e.g. the Internet) notwithstanding the fact that such computer networks extend beyond the geographical limits of the Territory and such material may be capable of receipt anywhere on such networks; and
d) to transmit and authorise others to transmit excerpted still images or moving clips with or without the accompanying soundtrack and or audio material from the Programme as part of the electronic programme guides (“EPGs”).
1.8.14. The right to reproduce, transmit and authorise others to reproduce and transmit excerpted and or “grabbed” still images of moving clips (not to exceed three (3) minutes per excerpt) on any of Company B’s television services with or without the accompanying soundtrack and/or audio material from the Programme for interstitial purposes, subject to section I-L above.
1.8.15. Subject to section I-L above, the right to use and publish in respect of the artists, producers, directors, musicians and other performers whose Performances are covered or reproduced in the Programme(s) or any other person concerned in the making thereof, their legal or professional names, photographs and likenesses in connection with the promotion and advertising of Company B’s services provided always that Company B shall comply with all credit requirements notified in writing to Company B by Licensor prior to delivery of the Master of such Programme. Company B shall not be liable for any casual or inadvertent failure to comply with the provisions of this sub-clause.
1.8.16. The right to broadcast or authorise others to broadcast the Programme simultaneously on two (2) or more satellites and such simultaneous transmission shall constitute the same one (1) exhibition.
1.8.17. The right to make and retain both during and after the Term a copy of any Programme as may be required or recommended by any relevant authority.
1.8.18. The right to include icons on the Programmes that may enable such viewer in the course of viewing exhibitions of the Programme(s) to access on demand and/or select from a range of options enhanced service(s) available through Company B’s interactive platform or any part thereof including without limitation, navigational tools such as EPG functionality and other applications such as digital text and screen shrinkage and other forms of enhancements hereafter developed from time to time.
1.8.19. In respect of programmes which are concerts or recital performances containing a variety of musical works and subject to the provisions of this clause, Company B reserves the right to transmit such programmes in two parts on successive days or in successive weeks, such a split transmission being counted as one run or playday for the programme when both parts have been transmitted. Programmes presented under the provisions of this clause shall be presented, billed and listed as Part One and Part Two of the programme under its normal title and shall not be otherwise altered or edited. Notwithstanding the forgoing, Company B undertakes that it shall not transmit such a programme in two or more parts when in respect of that programme Licensor has given notice that the producer has prohibited any such non-continuous transmission of the programme.
1.9. “SVOD” shall mean a subscription or “value added” service, transmitted by any means of delivery, which offers the viewer access to programmes or a block of programming for the selection and exhibition of individual programmes at a time determined by the viewer. Notwithstanding anything to the contrary in this Agreement and without limitation, the Internet (and other analogous open user networks) and PVR downloads shall be deemed to be included in the scope of the means of delivery for which Rights for SVOD are granted.
1.10. “Subsidiary” shall have the meaning attributed to it by Section 736 of the Companies Act 1985 (as amended by Section 144 of the Companies Act 1989) but (for the avoidance of doubt) as if all references therein to companies included any body corporate, wherever incorporated.
1.11. “Television” means all forms of communication to the public by way of electronic transmission now known or hereafter developed whether analogue and/or digital or otherwise of audio and/or audio visual and/or video signals now known or hereafter developed including without limitation delivery via one or more of the following: satellite; cable; SMATV; microwave; MMDS; DTT.
1.12. The “Term” means the period commencing on the earlier of the date hereof or sixty (60) days prior to the Availability Date for the first Programme hereunder continuing until the last day of the Licence Period for the Programme last to expire hereunder.
1.13. “Territory” means United Kingdom of Great Britain and Northern Ireland, Republic of Ireland, Channel Islands and Isle of Man.
1.14. “Company B’s Sub-Master” means such copy or copies of the Master loaned to Company B hereunder as Company B shall manufacture or cause to be manufactured for the purpose of exercising the Rights hereunder (but not further or otherwise).
2. Licensor Holdbacks
2.1. Licensor confirms and undertakes with respect to each Programme that prior to the Licence Period no version of such Programme will have been promoted or exhibited in the Territory on Television by any means including without limitation pay and free Television and transactional services such as PPV, VOD and SVOD.
2.2. Licensor confirms and undertakes with respect to each Programme that Licensor shall not at any time during the Licence Period directly or indirectly exhibit or promote the exhibitions of any versions of such Programme in the Territory by any form of Television by any means including without limitation pay and free Television and transactional services such as PPV, VOD and SVOD.
2.3. Licensor confirms and undertakes with respect to each Programme that Licensor has not directly or indirectly authorised prior to the Term and shall not authorise any third party to exhibit or promote the exhibitions at any time during the Licence Period of any versions of such Programme in the Territory by any form of Television by any means including without limitation pay and free Television and transactional services such as PPV, VOD and SVOD.
2.4. With respect to each Programme, in the event of any breach of clauses 2.1, 2.2 or 2.3 and without prejudice to any of Company B’s rights (including, without limitation to restrain, or to require Licensor to restrain, any further breaches of the said clauses) Company B may terminate the Agreement with respect to such Programme as provided in clause 8 below.
3. Materials
3.1. Licensor shall deliver to Company B at Licensor’s sole cost and expense at least one hundred and fifty (150) days prior to the Availability Date in respect of each of the Programmes licensed hereunder the following materials and in respect of each Programme failure to comply with the provisions of this sub-clause shall be a material breach:
3.1.1. One Master on loan, such Master to be of a first class technical quality suitable for the manufacture by Company B of Company B’s Sub-Masters if required or, if not required, suitable for transmission authorised under this Agreement.
3.1.2. One copy of the music cue sheet.
3.1.3. The following advertising or promotional materials:
a) a synopsis and cast list (with full biographical details) for the Programme;
b) if the Programme is a feature film, one United Kingdom theatrical trailer for the Programme, if available;
c) one electronic press kit for the Programme, if available;
d) colour transparencies of the Programme as available from stock e-mailed to Company B in jpeg format convertible by Company B;
e) in addition to the materials specified in sub-clauses (a) to (d) inclusive above, such additional trailer elements and advertising and promotional material (including photographs and biographies of artists and performers engaged in connection with the production of such Programme) general synopsis, episode synopses, full cast list and credits, transparencies and stills and any Programme trailers and copies of such other advertising and promotional materials as Company B may reasonably require in sufficient quantities and of sufficient quality as shall in the opinion of Company B enable Company B to promote and advertise such Programme and/or Company B’s services generally; and
f) if requested, a time coded script to assist with reversioning. This script shall be supplied via e-mail as a word processing package that is convertible by Company B.
3.1.4. A copy of the caption file via e-mail. Such file shall be PAL EBU caption files in the standard Teletext SoftelΣTL file format. If that is not available, then one copy of the dialogue and continuity script by prior written agreement. This script shall be supplied via e-mail as a word processing package that is convertible by Company B.
3.2. Within forty five (45) days of receipt of a Master, Company B shall view the same to determine its technical acceptability PROVIDED ALWAYS that in the event that five (5) or more Masters are supplied pursuant to this Agreement in any forty five (45) day period then Company B shall be entitled to an additional period of twenty (20) days for each additional Master over four (4) so supplied in which to determine its technical acceptability. If Company B regards the Master as unacceptable it shall serve a notice rejecting the same within such forty five (45) days (or such additional period, if applicable) and shall promptly send a technical report to Licensor and further, if so requested by Licensor, shall promptly return the Master with such technical report to Licensor at Licensor’s sole cost and expense. Licensor shall forthwith upon receipt of such notice but in no circumstances more than thirty (30) days after receipt of such notice dispatch at its sole cost and expense an alternative Master and the same procedure shall be repeated. If this second Master should be of unacceptable quality to Company B, Company B shall be entitled to terminate this Agreement by written notice in respect of the Programme contained on the said Master whereupon Licensor shall repay to Company B forthwith all sums paid by Company B to Licensor in respect of such Programme PROVIDED ALWAYS that if the unacceptable Master is part of a series the continuity of which would be seriously impaired by the inability to show the episode(s) contained on the unacceptable Master then Company B shall so notify Licensor and this Agreement shall forthwith terminate in respect of all the of the Programmes in such series and Licensor shall repay to Company B forthwith all sums paid by Company B in respect of such Programmes. Thereafter neither party shall have any further liability to the other in respect of such Programme.
3.3. Company B shall be entitled to manufacture and retain Company B’s Sub-Masters during the Term and to utilise the same for the transmission of its service. Following manufacture of Company B’s Sub-Masters the Master shall be returned to Licensor in the same condition (fair wear and tear excepted) as that in which it was delivered at such address as Licensor shall nominate or direct. This delivery shall be at Licensor’s sole cost and expense.
3.4. In respect of any feature film that is licensed hereunder (if any) the version of each to be delivered hereunder shall be the version certificated by the British Board of Programme Classification or any successor body (“the BBFC”) for home video.
3.5. In respect of any feature film that is licensed hereunder (if any) Company B shall not be required to accept any film hereunder unless the BBFC has awarded such film an 18 or less restrictive certification in respect of both theatrical and home video exhibition or, where there is no theatrical exhibition, in respect of home video exhibition only.
3.6. In respect of any feature film that is licensed hereunder (if any) Licensor shall provide to Company B no later than the Delivery Date a copy of the BBFC certificate and a copy of the UK Video Censor’s Cut List if such list exists.
3.7. In respect of any feature film that is licensed hereunder (if any) Licensor shall if so requested by Company B supply to Company B at Licensor’s sole cost and expense a Master of the “airline version” or the “television version” (as such terms are commonly understood in the Programme industry in the Territory as at the date hereof) (if available) no later than 14 days after such request from Company B.
4. Licensor Representations, Warranties and Covenants
Licensor represents and warrants that:
4.1. It is the owner of the Rights in the Programmes which are granted to Company B hereunder and that the consent in writing of all performers has been secured whose Performances are reproduced in the Programmes and all other consents necessary for the elective grant to and exercise by Company B of the Rights in accordance with the terms of this Agreement.
4.2. Company B shall be under no liability whatsoever to any of the said performers or any producers, directors or to any other third party rendering services in connection with the production and/or distribution and exploitation of the Programmes, the trailer elements, and advertising and promotional material (or to any person or body representing them) arising out of the exercise by Company B of the Rights (including by way of illustration and not limitation the payment of any and all royalties, participations, re-use fees, residual fees, re-run fees or other payments of whatsoever nature to any or all of the persons aforesaid or to any guilds or unions representing such persons for the privilege or right of exploiting or marketing the Programmes pursuant to the Rights granted to Company B hereunder).
4.3. It possesses full power and authority to enter into and perform this Agreement and that there are no liens or encumbrances against the Programmes or any of them which would or might derogate from or be inconsistent with the Rights granted to Company B hereunder.
4.4. The Programmes do not and will not contain material which is obscene or defamatory or which will or might expose Company B to any proceedings whatsoever of a civil nature from third parties (including but not limited to proceedings in respect of invasion of or breach of rights of privacy) or to criminal proceedings. Further the Programmes do and will comply in all respects with all relevant legislation, codes of practice or other regulations to which Company B is or may be from time to time subject, including but not limited to the codes of XXX (or any successor).
4.5. Subject to the proviso to this sub-clause it is solely responsible for the fulfilment of all copyright and contractual obligations to third parties arising out of or in connection with any musical, literary or dramatic work and/or Performances reproduced in the Programmes and the exploitation thereof pursuant to the Rights granted hereunder PROVIDED THAT Licensor shall not be responsible for securing those necessary music performance rights in connection with such exploitation as aforesaid as are vested in the appropriate collecting society.
4.6. The Programmes are protected by copyright in the Territory and it will not do, procure or permit any act or omission which would adversely affect such copyright protection in any way whatsoever.
4.7. Licensor will at the request of Company B and at Licensor’s sole expense do all such further acts and execute all such further deeds, documents and instruments from time to time reasonably necessary to vest the Rights in Company B and for the protection and enforcement of the same and Licensor hereby appoints Company B its agent with the right but not the obligation (at the sole expense of Licensor) to do any and all acts and things necessary to vest the Rights in Company B and to execute all such further deeds, documents and instruments in the name of and on behalf of Licensor which appointment shall be irrevocable. Company B’s appointment as agent is without prejudice to Company B’s rights and remedies with respect to breach of the above and without detracting from Licensor’s obligations.
4.8. Licensor hereby undertakes prior to the commencement of the Licence Period of each of the Programmes, at its own cost, to effect with an established insurer and maintain until the end of the Term Errors and Omissions insurance upon such terms as are customary within the Programme industry (providing in any event for minimum limits of cover in the sum of US$1,000,000 for a single claim and US$3,000,000 for claims in the aggregate and a maximum deductible of US$10,000 for any one claim) and shall upon demand deliver a copy of the certificate of insurance to Company B and shall require Company B, its parent, subsidiaries and related companies to be added as named insureds on such policy which policy shall provide that any monies payable thereunder shall be reimbursed to the party incurring the liability and shall contain an endorsement that negates the “other insurance” clause in the policy and a statement that the insurance being effected is primary and any insurance carried by Company B is neither primary nor contributory.
5. Overspill
Licensor acknowledges that where the Programmes are broadcast by satellite for reception in the Territory, such broadcasts may be capable of reception outside the Territory due to the inherent capability of satellites to beam down signals which are not confined to territorial boundaries (“Overspill”). Licensor further acknowledges that the Rights herein granted to Company B include but are not limited to the right to broadcast the Programmes by satellite that may cause Overspill. Company B agrees that it will scramble its satellite signals of the channels on which a Programme is exhibited and will not knowingly authorise satellite reception by a viewer outside the Territory. Notwithstanding such Overspill, Licensor agrees that the occurrence of Overspill shall not constitute a breach of this Agreement provided that Company B shall have encrypted and not knowingly authorised reception as aforesaid.
6. Indemnity
Licensor shall indemnify and hold harmless Company B in respect of any obligation, claim, action, demand, cost, expense, loss or other liability whatsoever arising directly or indirectly out of or from the exercise of all or any part of the Rights granted to Company B hereunder or any breach of any representation or warranty, agreement or undertaking, whether express or implied, by Licensor hereunder.
7. Taxation and Levies
7.1. Company B is registered for Value Added Tax within the United Kingdom under registration number 440 627467.
7.2. Licensor warrants that services provided under this Agreement are treated as an Intra-Community supply of Services for Value Added Tax purposes.
7.3. Licensor undertakes to promptly issue invoices in a form sufficient to enable Company B to fulfil any requirements imposed upon it by any Taxation or Governmental Authority in respect of Value Added Tax. In the event that any Taxation or Governmental Authority carries out an enquiry in respect of the treatment of this Agreement for Value Added Tax purposes then Licensor agrees to promptly and accurately and fully respond to any reasonable request made by Company B to Licensor in respect of such enquiry.
7.4. If Company B (or any third party authorised by Company B to exercise any of the Rights) is required to pay any fee or levy to any collecting society in connection with the exercise of any of the Rights in respect of any Programme, subject to the proviso in clause 4.5 and save for the Music Performing Rights, then there shall be deducted from the Licence Fee for such Programme an amount equal to any amount so required to be paid. The reduced licence fee resulting from such deduction is referred to as the “Reduced Licence Fee”. Company B shall produce to Licensor documentary evidence of any amount which it (or any such third party) has paid to a collecting society in respect of the exercise of any of the Rights, and Licensor shall forthwith repay such amount to Company B, to the extent that the Licence Fee already paid by Company B hereunder exceeds the Reduced Licence Fee.
8. Termination
8.1. Either party shall be entitled to terminate this Agreement with respect to any one or more of the Programmes forthwith by written notice if the other:
8.1.1. is in material breach of its warranties or obligations hereunder and such breach is not remedied (if capable of remedy) within thirty (30) days of receipt of written notice specifying the breach and requiring it to be remedied PROVIDED THAT if such material breach relates only to one or more Programmes hereunder the party not in breach shall have the option to terminate this Agreement in its entirety or in respect of such Programme or Programmes and in such an event, this Agreement shall continue in full force and effect in respect of all other Programmes which are not the subject of a material breach as aforesaid; or
8.1.2. goes into receivership or liquidation (other than for the purposes of amalgamation or reconstruction) or becomes insolvent or makes any composition or arrangement with its creditors.
8.2. Company B shall be entitled to terminate this Agreement with respect to a particular Programme or Programmes forthwith by written notice if the BBFC has not awarded such Programme or Programmes a certification of 18 or a less restrictive certification both for theatrical and home video exhibition or, where there is no theatrical exhibition, has not awarded a certification for home video exhibition only.
8.3. Any termination of this Agreement by either party shall be without prejudice to the rights or remedies of either party against the other party in respect of any antecedent breach of the Agreement.
8.4. Without prejudice to any other rights or remedies that either party may have, Licensor acknowledges and agrees that damages may not be an equitable remedy to breach by Licensor of this Agreement and that Company B shall be entitled to the remedies of injunction, specific performance and other equitable relief to any threatened or actual breach of this Agreement by Licensor and that no proof of special damages shall be necessary for the enforcement of these Conditions.
Notwithstanding anything contained in this Agreement if total or partial performance hereof shall be delayed or rendered impossible for either party by virtue of any reason whatsoever beyond its reasonable control (including but not limited to war, invasion, act of foreign enemy hostilities (whether war be declared or not), civil war or strife, rebellion, strikes, lockouts or other industrial disputes or actions, fire, flood, epidemic, earthquake, explosion, decision of any court or other judicial body of competent jurisdiction, transportation, power or satellite failure or non-availability, failure or non-availability of any part of the transmission system whether relating to satellite, cable, terrestrial facilities or other means, acts of God, acts of governments or other prevailing authorities or defaults of third parties) then such non-performance shall not constitute a breach of this Agreement. It is further agreed and understood that if the occurrence of any such event shall prevent Company B from operating any material part of its service then Company B shall so notify Licensor in writing and this Agreement shall be suspended in all respects from the date on which the event of force majeure occurred and shall be resumed with effect from midnight on the day on which the event giving rise to the suspension ceases to the effect that any such period of suspension shall not be included in any calculation of periods of time under this Agreement (other than under the proviso to this clause) PROVIDED ALWAYS that if the Agreement shall be suspended for a consecutive period of twelve (12) months, then at any time thereafter either party may terminate this Agreement forthwith by written notice to the other with respect to the Programme so affected.
10. Rebates
Without prejudice to Company B’s rights or remedies for breach of contract, in the event that this Agreement is terminated by either party pursuant to clause 9 or by Company B pursuant to clause 8 in either case with respect to any one or more Programmes, Licensor shall repay to Company B forthwith in respect of each such Programme subject to termination an amount equal to the Licence Fee paid for such Programme less the amount of such Licence Fee attributable to the Exhibition Weeks on which such Programme was exhibited on the Primary Channel prior to such termination.
11. Assignment
11.1. Neither party hereto shall assign, transfer, charge or make over this Agreement or any of its rights or obligations hereunder except that both Licensor and Company B may assign or sub-license its rights in whole or in part to a “Permitted Transferee”. A “Permitted Transferee” shall mean a parent, Subsidiary or Associated Company of Licensor or Company B (as the case may be) or a joint venture to which Company B or Licensor (as the case may be) is a party or a person, firm or corporation who owns or hereafter acquires a substantial portion of Licensor’s or Company B’s (as the case may be) stock or assets. No transfer shall relieve the transferring party of its obligations hereunder.
11.2. In the event of an assignment or sub-licence to a Permitted Transferee, the party desiring the assignment or sub-licence must give one month’s written notice and the other party agrees to execute and deliver any documents as are requested by the assigning or sublicensing party as necessary to perfect such assignment or sub-licence.
12. Confidentiality
12.1. Each party undertakes to the other that, subject to 12.2 below, it shall and shall procure that their respective officers, directors, and employees shall keep confidential the provisions of this Agreement to third parties (other than their agents, representatives, attorneys, professional advisors or to auditors appointed by a distributor of a Programme hereunder who need to know such information as part of its normal reporting or review procedure to its auditors, its shareholders and its parent company (“Distributor Disclosure”) save to the extent necessary to enable them to perform their obligations hereunder. The parties shall, and shall procure that such Distributor Disclosure be limited solely with respect to the Programme(s) that require such disclosure and solely to the extent required in order to perform the distribution services contemplated by its agreement with Licensor and shall procure that such Disclosee is bound by the terms of this clause hereunder.
12.2. Any breach of this clause 12 shall be a material breach of the Agreement save that the provisions of clause 12.1 above shall not apply to any information which:
12.2.1. is in the public domain other than by default of the recipient party;
12.2.2. is obtained by the recipient party from a bona fide third party having no apparent restraint on its free right of disposal of such information; or
12.2.3. is required to be disclosed by law (or applicable regulation) or the valid order or decree of a court of competent jurisdiction by any applicable law, government order or regulation, or the request or direction of any governmental or other regulatory authority or agency.
13. Notice
Any notice given under the provisions under this Agreement shall be in writing and shall be sent to the address of the party to be served as above written or such other address of which notice has previously been given to the other party in accordance with this clause. All notices addressed to Company B shall be marked for the attention of James Conyers, General Counsel. All notices shall be delivered by hand or sent by facsimile (with a copy posted) or, within the United Kingdom, by registered or recorded delivery, or outside the United Kingdom, by registered air mail letter. All notices shall be deemed (until the contrary be proved) to have been received when delivered by hand or on the date on which they would have been received in the normal course of posting (if posted) or if given by facsimile, notices shall be deemed to have been received when transmitted provided that the sender shall have received a transmission report indicating that all pages of the notice have been transmitted to the correct facsimile number.
14. Miscellaneous
14.1. This Agreement represents the entire understanding, and constitutes the entire agreement, in relation to its subject matter and supersedes any previous agreement between the parties with respect thereto and, in particular, excludes any warranty, condition or other undertaking implied by law or by custom. Each party confirms that it has not relied on any representation or warranty or undertaking which is not contained in this Agreement and (without prejudice to any liability for fraudulent misrepresentation) no party shall have any remedy in respect of any misrepresentation or untrue statement made (whether innocently or negligently) by the other party except to the extent (if any) that a claim lies under this Agreement.
14.2. This Agreement may be varied only by an instrument in writing signed on behalf of both parties.
14.3. No failure to exercise nor any delay in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy hereunder, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. No waiver of any term, provision or condition of this Agreement shall be effective unless it is in writing and signed by the waiving party.
14.4. Nothing in this Agreement is intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce a term contained in this Agreement.
14.5. The headings in this Agreement have been inserted for convenience only and shall not affect its construction.
14.6. All references in this Agreement to words in the plural form shall be deemed to have been references to the singular where appropriate, and vice versa.
14.7. There shall survive the expiry or termination of this Agreement any term of this Agreement which in order to give effect its provision needs to survive the said expiry or termination.
14.8. If any provision of this Agreement should be or become partially or completely ineffective or unenforceable, then such provision shall be struck out but the remaining provisions shall remain unaffected and have full force and effect. In such an event, the parties shall consult with a view to negotiating in good faith an alternative provision which substantially gives effect to the parties’ intentions at the date hereof and which no longer is ineffective or unenforceable. In the event that, within sixty (60) days of the commencement of discussions, no such mutually satisfactory agreement can be reached which in the opinion of the parties substantially gives effect to their respective original intentions and which is effective and enforceable, then, subject to clause 14.9 below, either Company B or Licensor may at any time thereafter terminate this Agreement by written notice to the other party provided that the other party shall not be deemed to have waived its right to terminate hereunder as a result of not exercising such right before the other party.
14.9. The right of termination of the parties set out in clause 14.8 above shall be used in good faith and only where the commercial benefit of this Agreement for the party exercising such right of termination has in practice been diminished in consequence of such provision becoming partially or completely ineffective or unenforceable.
14.10. This Agreement shall be governed by and interpreted in accordance with the laws of England and the parties agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising in relation hereto.